US v. Louthian, No. 05-4570 (4th Cir. 2006)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4570 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RAY DEWAYNE LOUTHIAN, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (CR-03-946-HFF) Submitted: February 17, 2006 Decided: April 14, 2006 Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael MacKinnon, Greenville, South Carolina, for Appellant. Alan Lance Crick, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Ray Dewayne Louthian appeals a 360-month sentence imposed after he pleaded guilty to conspiracy to rob a post office and present stolen money orders for payment, in violation of 18 U.S.C. §§ 371, 500, 2114(a) (2000); assault and robbery of a postal employee and aiding and abetting, in violation of 18 U.S.C. §§ 2114(a), 2 (2000); using, carrying and possessing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 2 (2000); conspiracy to use, carry, and possess a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(o) (2000); theft and conversion of blank postal money orders and aiding and abetting, in violation of 18 U.S.C. §§ 500, 2 (2000); and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e) (2000). states Counsel for Louthian filed an Anders1 brief, in which he that there are no meritorious issues for appeal, but suggests that the district court erred in departing upward from the Guideline2 range in sentencing Louthian. Louthian was advised of his right to file a pro se supplemental brief, but did not file a brief. 1 Anders v. California, 386 U.S. 738 (1967). 2 U.S. Sentencing Guidelines Manual (USSG) (2003). - 2 - The probation officer concluded that Louthian qualified for sentencing as a career offender and an armed career criminal,3 and calculated imprisonment. a Guideline range of 272 to 319 months of The probation officer also recommended an upward departure from the Guideline range based upon Louthian s prior convictions and the nature of those crimes. Louthian objected to the probation officer s recommendation for an upward departure, contending that the calculated Guideline range provided adequate punishment options for the district court in his case. The district court concluded that an upward departure was warranted, determined that a departure to offense level thirty-six in criminal history category VI was appropriate, and sentenced Louthian to 360 months of imprisonment. On appeal, Louthian repeats his arguments that an upward departure was not warranted in this case, and that even if a departure was appropriate, the district court erred in determining the extent of the departure. that the defendant's under-represents the If reliable information indicates criminal history seriousness of category the substantially defendant's criminal history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted. USSG § 4A1.3(a)(1). We have noted that [s]ection 4A1.3 3 was drafted in classic Louthian did not object to classification as an armed career criminal or career offender. - 3 - catch-all terms for the unusual but serious situation where the criminal history category does not adequately reflect past criminal conduct or predict future criminal behavior. United States v. Lawrence, 349 F.3d 724, 730 (4th Cir. 2003). In determining whether an upward departure from Criminal History Category VI is warranted, the court should consider that the nature of the prior offenses rather than simply their number is often more indicative of the seriousness of the defendant s criminal record. § 4A1.3 comment. (n.2(B)). USSG In deciding the extent of a departure in the case of a defendant who is already in criminal history category six, the court should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate to the case. USSG § 4A1.3(a)(4)(B). Our review of the record reveals that the district court explained in great detail its decision that an upward departure was appropriate in this case, as well as its reasoning supporting a conclusion that the intervening offense level of thirty-five did not adequately history. address the inadequacy of Louthian s criminal We conclude that, under either a de novo or abuse of discretion standard of review, the district court did not err in its decision to upwardly depart, or its selection of the ultimate sentence in this case. - 4 - In accordance with Anders, we have thoroughly examined the entire record, including the transcripts of the Fed. R. Crim. P. 11 and sentencing hearings, for any meritorious issues and have found none. Louthian s convictions and sentence. other potentially Accordingly, we affirm This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 5 -
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